Complainant 512022 v The Australian Capital Territory As Represented BY Canberra Health Services (Discrimination)
[2023] ACAT 66
•25 October 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMPLAINANT 512022 v THE AUSTRALIAN CAPITAL TERRITORY AS REPRESENTED BY CANBERRA HEALTH SERVICES (Discrimination) [2023] ACAT 66
DT 51/2022
Catchwords: DISCRIMINATION – disability discrimination – referral of discrimination complaint to the tribunal by ACT Human Rights Commission – applicant confined to a wheelchair – provision of oxygen and related services under the Domiciliary Oxygen and Respiratory Supply Scheme – application dismissed
Legislation cited: Discrimination Act 1991 (ACT) ss 7, 8, 20
Human Rights Commission Act 2005 (ACT) ss 53A, 53CA
Cases cited:Briginshaw v Briginshaw (1938) 60 CLR 336
Complainant 201931 v Australian Capital Territory (represented by Access Canberra) [2021] ACAT 9
IW v City of Perth (1997) 191 CLR 1
McGhie v Aboriginal Legal Service (NSW/ACT) Limited [2023] ACAT 27
Nowak (a pseudonym) v Walsh (a pseudonym) [2023] ACAT 3
Pikula-Carroll v ACT Corrective Services [2023] ACAT 33
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Varasdi v State of Victoria [2018] FCA 1655
List of
Texts/Papers cited: ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT: Final Report, 2015)
Rees, Rice and Allen, Australian Anti-Discrimination and Equal Opportunity Law (The Federation Press, 3rd ed, 2018)
Tribunal:Senior Member L Beacroft
Senior Member J Kalokerinos
Date of Orders: 25 October 2023
Date of Reasons for Decision: 25 October 2023
Date of Publication: 30 October 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT51/2022
BETWEEN:
COMPLAINANT 512022
Applicant
AND:
THE AUSTRALIAN CAPITAL TERRITORY AS REPRESENTED BY CANBERRA HEALTH SERVICES
Respondent
TRIBUNAL:Senior Member L Beacroft
Senior Member J Kalokerinos
DATE:25 October 2023
ORDER
The Tribunal orders that:
The application is dismissed.
………………………………
Senior Member L Beacroft
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
This matter is a discrimination complaint referred to the tribunal under section 53A of the Human Rights Commission Act 2005 (HRC Act). The applicant claims that they were discriminated against in the delivery of services under the Domiciliary Oxygen and Respiratory Supply Scheme (DORS Scheme), administered by the Australian Capital Territory, represented by Canberra Health Services (the respondent). The respondent denies that discrimination occurred.
The applicant is a person with disabilities. They provided medical records to the Tribunal detailing their disabilities, including a medical certificate from their treating doctor dated 1 April 2021. The certificate indicated that the applicant has Ehers-Danlos Syndrome, resulting in: excessive weight gain; obesity hypoventilation syndrome; nocturnal hypoventilation; and daytime type II respiratory failure.[1]
[1] Applicant’s submissions dated 14 February 2023- ‘Medical certificate for the applicant electronically signed by Dr Rosianna Wee on 1 April 2021’; a further medical certificate was also tendered, confirming this diagnosis: Applicant’s submissions dated 14 February 2023 – ‘Medical certificate for the applicant electronically signed by Dr Rosianna Wee on 9 June 2022’
On 13 May 2021, the applicant lodged a complaint with Canberra Health Services raising a series of concerns about the services they received under the DORS Scheme. These concerns related to the application of fees to the DORS Scheme; the hours of operation of the delivery service; the quota of oxygen provided to users; policy for the assistance of patients who are not strong enough to screw down the connecting valve; and the consideration of oxygen generators for some circumstances.[2] On the following day, Canberra Health Services contacted the applicant to respond to their feedback. The applicant’s concerns were also escalated to the ACT Health Services Commissioner in the ACT Human Rights Commission (HRC), and Canberra Health Services responded to the HRC about those complaints.[3]
[2] Annexure E to witness statement of Michael Keen dated 4 July 2023 – ‘Canberra Health Services Feedback submitted by the applicant 13 May 2021’
[3] Annexure I to witness statement of Michael Keen dated 4 July 2023 – ‘Correspondence from Canberra Health Services to ACT Human Rights Commission’ dated 30 September 2021
On 30 November 2021, the HRC indicated to Canberra Health Services that the applicant wished to make a discrimination complaint against it on the grounds of disability. The parties agreed to a conciliation in relation to the applicant’s complaint, which took place on 22 March 2022.[4]
[4] The issues discussed in the conciliation and the responses of Canberra Health Services were summarised in annexure M to witness statement of Michael Keen dated 4 July 2023 – ‘Correspondence from Canberra Health Services to the HRC’ dated 10 May 2022. See also, Annexure L to witness statement of Michael Keen dated 4 July 2023 – ‘Correspondence from HRC to Canberra Health Services’ dated 27 April 2023’, wherein the applicant added their recommendation of a database to assist with ensuring that the DORS services “are tailored and appropriate for specific patients and their needs.”
The applicant subsequently lodged a complaint with the HRC through an online complaint form.[5] The complaint was specified to relate to an event occurring in the week ending 26 March, in the ACT.[6] The complaint specified, in full:
I have been put on oxygen. I am allocated 2 bottles a month about 8 litres. It is not enough[.] You have to live like you are on lockdown. You don’t have enough oxygen to travel or even go anywhere. This is having a terrible impact on my quality of life. They said I could have up to four cylinders. I have tried to get 4 cylinders but they keep on saying no. Meanwhile the dental damage in my teeth is getting worse.
I have the bottles at home. There is a black butterfly [k]nob on the regulator. My [carer] and I are not strong enough to turn the knob to the correct setting. We have Ehlers-Danlos Syndrome[.] We can’t access the oxygen. I need urgent dental work at a specialist dentist in Sydney. I don’t have enough oxygen to get to Sydney, get treatment and get home. The situation is having a terrible impact on my life. I have asked for help and there is none from the scheme or BOC. There is no provision for disabled people.[7](sic)
[5] Attachment to referral letter from the HRC dated 30 August 2022 – ‘New service complaint from the applicant’
[6] The year was not specified in the ‘New service complaint from the applicant’, page 2; but was subsequently identified in documents lodged with the tribunal to relate to 2022: Transcript of hearing dated 19 July 2023, page 241, lines 22-40, referring to annexure M to witness statement of Michael Keen dated 4 July 2023 – ‘Correspondence from Canberra Health Services to the HRC’ dated 10 May 2022
[7] Attachment to referral letter from the HRC dated 30 August 2022 – ‘New service complaint from the applicant’, pages 2-3
In response to the question on the online complaint form, “What would you like to have happen to resolve your complaint?” The applicant indicated, “I would like [a] generator to take with me everywhere [,] to be given a portable oxygen.”[8] (sic)
[8] Attachment to referral letter from the HRC dated 30 August 2022 – ‘New service complaint from the applicant’, page 8
The complaint was not resolved by conciliation. On 23 August 2022, the applicant requested that the HRC transfer their complaint to the tribunal in accordance with section 53A(1)(b) of the HRC Act. On 30 August 2022, the HRC referred the complaint to the tribunal on the ground of disability in the provision of goods, services and facilities.[9]
[9] Referral letter from the HRC dated 30 August 2022
The Tribunal heard the matter over two days. Over the course of the proceedings, the applicant made a number of further claims. In documents lodged with the tribunal, they sought orders under section 53E of the HRC Act that the respondent: not repeat the unfavourable treatment in relation to the applicant or any other oxygen consumers in the ACT; provide the applicant with a new wheelchair modified car, or $100,000 towards its purchase; and pay a sum of $100,000 in compensation for the hurt and suffering of the applicant.
At the hearing, the applicant also forcefully advocated for changes to be made to the DORS Scheme to improve the experience for themselves and other users.[10] They did not quantify the basis upon which the monetary claims were comprised, nor did they make any submissions in support of them. The respondent denied that it had engaged in any discriminatory behaviour, denied any liability, and asserted that there was no basis for the respondent to provide a wheelchair modified car or any financial compensation.[11]
The evidence
[10] Transcript of hearing dated 19 July 2023, page 247, line 22-page 248, line 7
[11] Respondent’s response to application dated 7 June 2023 at [9]
The applicant gave evidence to the Tribunal on 18 July 2023. They provided detail about the significant challenges they face in living with Ehlers-Danlos Syndrome. The applicant’s carer, who also lives with Ehlers-Danlos Syndrome, also provided evidence.
Evidence was given on behalf of Canberra Health Services by several witnesses through written statements and at the hearing: Mr Michael Keene, the Director of Client Support Services in Canberra Health Services and Chair of the DORS Advisory Committee; Ms Donna Azzopardi, Administration Officer for the DORS Scheme in Canberra Health Services since 2011; and Mr Sebastian Tasrita, a former home therapy provider for the British Oxygen Company (the BOC).
The applicant’s claim related to services provided under the DORS Scheme. The DORS Scheme is administered by Canberra Health Services. Under it, oxygen and respiratory equipment are provided to eligible people in the ACT. Evidence was given that the services are delivered by BOC on behalf of Canberra Health Services, and BOC, in turn, sub-contracts the delivery of the equipment. The DORS Scheme “supplies equipment on referral from an authorised prescriber”;[12] is a funding scheme that aims to provide “appropriate services within the remit of the service”;[13] and does not provide other care.[14] Evidence was given at the hearing that the Scheme had an average of around 1,500 clients, across both oxygen and respiratory services.[15]
[12] Transcript of hearing dated 19 July 2023, page 166, line 38-page 167, line 3
[13] Transcript of hearing dated 19 July 2023, page 196, lines 18-23
[14] Transcript of hearing dated 19 July 2023, page 179, line 40-page 180, line 16
[15] Transcript of hearing dated 19 July 2023, page 221, lines 12-36
Mr Keene stated that he has “overarching responsibility” for the DORS Scheme;[16] that he has not personally looked at the contract with BOC recently;[17] would need to “know exactly” what it contained regarding quality assurance requirements;[18] and, in any case, the contract with BOC “has recently expired”.[19] He also stated that DORS does not have a policy about disability, and he was not specifically aware of other disability policies within the ACT government.[20]
[16] Transcript of hearing dated 19 July 2023, page 166, lines 18-23
[17] Transcript of hearing dated 19 July 2023, page 191, lines 13-18
[18] Transcript of hearing dated 19 July 2023, page 19, lines 1 -11
[19] Transcript of hearing dated 19 July 2023, page 180, lines 17-22
[20] Transcript of hearing dated 19 July 2023, page 184, line 34-page 186, line 46
The applicant’s claim specified that it related to the delivery of oxygen cylinders to their home in the “[w]eek ending 26th March”.[21] (sic) Deliveries regularly occurred on a Friday. In the week ending 26 March 2022, Friday was on 25 March. Counsel for the respondent indicated that the respondent’s records contained no record of any delivery of oxygen cylinders to the applicant on that date.[22]
[21] Attachment to referral letter from the HRC dated 30 August 2022 – ‘New service complaint from the applicant’, page 2
[22] Transcript of hearing, 18 July 2023, page 11, lines 12-21
The date of the “[w]eek ending 26th March” may have been intended to relate to the date – 23 March 2022 – on which Canberra Health Services delivered to the applicant a trolley to assist them to manoeuvre the oxygen bottles, and tools custom‑made by Canberra Health Services to assist them with turning on the oxygen bottles.[23] Counsel for the respondent indicated that the respondent’s records contained no record of any issues raised in relation to any faulty items delivered on that date.[24]
[23] Annexure M to witness statement of Michael Keen dated 4 July 2023 – ‘Correspondence from Canberra Health Services to the HRC’ dated 10 May 2022; Transcript of hearing dated 19 July 2023, page 241, lines 22-40
[24] Transcript of hearing dated 18 July 2023, page 11, 12-21
Evidence was led for the respondent that the first date of delivery of oxygen cylinders to the applicant was on 4 December 2020.[25] Evidence was also submitted to the Tribunal that the applicant received education about the use of the oxygen cylinders at the time of the initial delivery, and that they provided their acknowledgement of receiving that education.[26] There was also no complaint in the respondent’s contemporaneous records about any faulty or empty cylinders being received on that date.[27] As was noted by counsel for the respondent, without meaning any disrespect, it is possible that the applicant and their witness recalled incorrect dates. Under cross-examination, the applicant conceded that the date specified in their complaint may have been – or was – erroneous,[28] and the actual date that faulty cylinders were delivered was the first date of delivery of oxygen cylinders to the applicant (4 December 2020).[29]
[25] Witness statement of Donna Azzopardi dated 6 July 2023 at [13]
[26] Annexure C to witness statement of Donna Azzopardi dated 6 July 2023 – ‘Patient education and assessment form’ dated 4 December 2020; Transcript of hearing dated 19 July 2023, page 250, lines 23-26
[27] Transcript of hearing dated 19 July 2023, page 251, lines 12-15
[28] Transcript of hearing dated 18 July 2023, page 56, line 12-page 58, line 41
[29] Transcript of hearing dated 18 July 2023, page 51, lines 8-47; Transcript of hearing dated 19 July 2023, page 247, lines 23-27
It needs to be noted that the witnesses for the respondent, Mr Keene, Ms Azzopardi, and Mr Tasreiter, each acknowledged that they had not personally reviewed all records held by the ACT or BOC, due to the time-consuming nature of doing so, or lack of access.[30] Furthermore, the applicant had very limited records to support their case.
[30] Transcript of hearing dated 19 July 2023, page 193, line 9-page 194, line 34, page 229, line 18-page 230, line 12, page 244, line 13-page 245, line 34
Given the onus was on the applicant and that the respondent was able to provide some documentary records – including detailed contemporaneous records maintained by Canberra Health Services, and the evidence of Ms Azzopardi and Mr Tasreiter – the Tribunal finds that no faulty cylinders were delivered in the week ending 26 March 2022.
Ms Azzopardi did give evidence of one date on which there was a complaint of faulty cylinders being delivered, however, this was on 1 September 2022.[31]
[31] Transcript of hearing dated 19 July 2023, page 251, line 17-25
In concluding her cross-examination of the applicant, counsel for the respondent asked the applicant whether all of their oxygen requirements (save for a back-up battery[32]) had been provided to them through the DORS Scheme, free of any direct cost. The applicant agreed.[33]
The legislative framework
[32] At the hearing the respondent indicated that it was attempting to source an additional or back‑up battery for the applicant: Transcript of hearing dated 19 July 2023, page 176, lines 1-14
[33] Transcript of hearing dated 18 July 2023, page 96, lines 4-12
In the ACT, discrimination matters are regulated by the Discrimination Act 1991 (Discrimination Act) and the Human Rights Commission Act 2005, supplemented by the common law. Section 7 of the Discrimination Act provides that the Act applies to discrimination on the ground of a number of ‘protected attributes’, including, relevantly, disability.[34]
[34] Discrimination Act section 7(1)(e)
Section 8 of the Discrimination Act provides that discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
‘Direct discrimination’ occurs if a person “treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.”[35]
[35] Discrimination Act section 8(2)
‘Indirect discrimination’ occurs if a person “imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.”[36] However, subsection 8(4) provides that “a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.” Under subsection 8(5):
In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include—
(a) the nature and extent of any disadvantage that results from imposing the condition or requirement; and
(b) the feasibility of overcoming or mitigating the disadvantage; and
(c) whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.
[36] Discrimination Act section 8(3)
Part 3 of the Discrimination Act sets out the forms of behaviour which constitute unlawful discrimination. Section 20 of the Act provides that:
It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person—
(a) by refusing to provide those goods or services or make those facilities available to the other person; or
(b) in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or
(c) in the way in which the provider provides those goods or services or makes those facilities available to the other person.
Section 53CA of the HRC Act specifies the onus in establishing a discrimination complaint before ACAT:
53CA Onus of establishing complaint about discrimination etc
(1) This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by—
(a)treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or
(b)imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) (indirect discrimination).
(2) It is a rebuttable presumption that discrimination has occurred if the complainant—
(a)establishes that—
(i)for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and
(ii)for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and
(b)presents evidence that would enable the ACAT to decide, in the absence of any other explanation—
(i)for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii)for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person.
(3) The presumption under subsection (2) is rebutted if the person complained about establishes that—
(a)for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or
(b)for a complaint about indirect discrimination—the effect of disadvantaging a person is not because of a protected attribute of the other person.
Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).
(4) In this section:
protected attribute means a protected attribute under the Discrimination Act 1991.
Did discrimination occur within the meaning of the Discrimination Act?
As has been noted elsewhere, the statutory framework for discrimination complaints is complex.[37]
[37] Rees, Rice and Allen, Australian Anti-Discrimination and Equal Opportunity Law (The Federation Press, 3rd ed, 2018), 86-87; ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT: Final Report, 2015), 8-10
In her opening submissions on behalf of the respondent, Ms Musgrove sought to clarify a number of aspects of the applicant’s claim, including the precise nature of the applicant’s disability, specifically, whether it was the requirement for oxygen which was the disability or another disability, such as difficulty or inability in turning the handles on the oxygen devices.[38]
[38] Transcript of hearing dated 18 July 2023, page 11, line 38-page 12, line 18
During the hearing, the applicant gave evidence about a number of painful and impactful manifestations of their disability, stemming from their Ehlers-Danlos Syndrome and from Chronic Obstructive Pulmonary Disease (COPD),[39] diagnosed as nocturnal hypoventilation and Type 2 respiratory failure by their treating specialist.[40] These included a need for the provision of oxygen to assist them with reduced lung capacity,[41] and a weakness in their wrists inhibiting their ability to activate the knobs on the oxygen cylinders.[42] Although medical evidence about the weakness in the applicant’s wrists was not tendered,[43] the Tribunal took notice of the evidence provided by the applicant in their testimony about the weakness in their wrists.
[39] Transcript of hearing dated 18 July 2023, page 31, line 13-page 39, line 34
[40] Applicant’s submissions dated 14 February 2023 – ‘Medical certificate for the applicant electronically signed by Dr Rosianna Wee on 9 June 2022’
[41] Transcript of hearing dated 18 July 2023, page 33, line 26-page 36, line 9
[42] Transcript of hearing dated 18 July 2023, page 36, line 31-page 38, line 34
[43] Transcript of hearing dated 18 July 2023, page 42, lines 1-24
Ascertainment of the precise nature of the applicant’s disability was not taken further on the basis that medical advice was provided from the applicant’s treating doctor regarding their disability as consisting of Ehlers-Danlos Syndrome, and nocturnal hypoventilation and Type 2 respiratory failure. This was accepted by the parties and the Tribunal. ‘Disability’ is defined by section 5AA(1)(a) of the Discrimination Act as meaning “total or partial loss of a bodily or mental function”. On this basis, the Tribunal recognised this as the applicant’s disability for the purposes of section 7(1)(e) of the Discrimination Act. The applicant’s “protected attribute” for the purposes of section 7(2) of the Discrimination Act included their nocturnal hypoventilation and Type 2 respiratory failure, and weakness in their wrists.
The complaint related to the provision of goods, services and facilities, specifically oxygen and oxygen-related equipment, by Canberra Health Services, under section 20 of the Discrimination Act. Under that section, there are several categories of unlawful discrimination in the provision of goods, services and facilities. At times, the applicant’s claim seemed to relate to a refusal to provide goods or services,[44] viz a portable oxygen concentrator,[45] and at other times, to the way in which the respondent provided the goods or services,[46] that is, the delivery of faulty or empty oxygen cylinders[47] or the delivery of cylinders which the applicant could not activate due to the weakness of their wrists.
[44] Discrimination Act section 20(a)
[45] Transcript of hearing dated 18 July 2023, page 49, line 39-page 50, line 45
[46] Discrimination Act section 20(c)
[47] Transcript of hearing dated 18 July 2023, page 51, lines 8-28
As noted earlier in these reasons, section 8 of the Discrimination Act provides that discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else. Accordingly, it is necessary to consider whether direct or indirect discrimination occurred.
‘Direct discrimination’ occurs if a person “treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.”[48] ‘Indirect discrimination’ occurs if a person “imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.”[49]
[48] Discrimination Act section 8(2)
[49] Discrimination Act section 8(3)
The respondent submitted that the applicant’s allegation was in relation to direct discrimination, and not indirect discrimination. This was not contested by the applicant. Indeed, the applicant did not make clear whether their claim was based on direct or indirect discrimination. In all the circumstances, and in the absence of submissions to the contrary, the Tribunal was prepared to accept that this was the case.
This tribunal has previously noted that in most discrimination cases before it, the complainant is unrepresented, while institutional respondents are represented by solicitors and counsel.[50] These circumstances were present in this case. The applicant was self-represented and untrained in the law, while the respondent was represented by solicitors and counsel. Throughout the hearing, the applicant expressed views, with some force, about the significant challenges they face in living with Ehlers-Danlos Syndrome, and about their issues with the DORS Scheme.[51] However, their difficulty in articulating their case both in their written and oral submissions, in the terms required by the legislation, was apparent.
[50] Pikula-Carroll v ACT Corrective Services [2023] ACAT 33 at [37]
[51] See, for example, transcript of hearing dated 19 July 2023, page 247, line 23-page 248, line 7
Counsel for the respondent drew the Tribunal’s attention to the meaning of ‘unfavourable treatment’ under section 8 of the Discrimination Act. The term is not defined in the Act, but was held by the then ACT Administrative Appeals Tribunal to:
[N]ot invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute … All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is … dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person.[52]
[52] Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22]
Prima facie, it might seem that the applicant was treated less favourably in Canberra Health Services’ withholding from them the provision of a portable oxygen concentrator, or through the provision of oxygen cylinders which they could not activate due to the weakness in their wrists.
However, the second element of the concept of direct discrimination requires consideration of causation, i.e., whether the basis, ground or reason for the differential treatment was the applicant’s protected attribute. The Tribunal must undertake an objective assessment of the respondent’s reasons for treating the applicant less favourably than others in comparable circumstances and is not bound by the respondent’s own (subjective) characterisation of its conduct but must undertake its own (objective) characterisation of those reasons.[53] As noted by Kirby J:
[A]ll that need be shown is that the alleged discriminator has acted ‘on the ground of’ relevantly, impairment. That involves an objective characterisation of the discriminator’s ‘ground’ for its conduct, for which subjective intention must be relevant but is not decisive.[54]
[53] Rees, Rice and Allen, Australian Anti-Discrimination and Equal Opportunity Law (The Federation Press, 3rd ed, 2018) at 108, citing Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56 at [9] per Dawson J
[54] IW v City of Perth (1997) 191 CLR 1, 59
The applicant bears the onus of proving this element. On the basis of the evidence tendered to the Tribunal, the onus has not been met.
Were any instances of actions or omissions ‘grounded’ in discrimination?
It is necessary to review the respondent’s specific actions or omissions cited by the applicant as allegedly discriminatory in nature to seek to identify any instances of actions or omissions ‘grounded’ in discrimination.
Empty or faulty cylinders
The applicant claimed that empty or faulty cylinders were delivered to them on their first receipt of oxygen cylinders, and on subsequent occasions, and that this caused them emotional distress. The applicant did not have records of any occasions when empty or faulty cylinders were provided to them.[55] Ms Donna Azzopardi, the Administration Officer for the DORS Scheme, gave evidence that she could not recall receiving any reports of empty cylinders being delivered.[56] She recalled that, on rare occasions, a scheme client would contact Canberra Health Services to indicate that a cylinder was faulty.[57] Canberra Health Services would then replace it,[58] and also replace the regulator on the cylinder, in case the fault was with that.[59] Ms Azzopardi testified that she could not recall the applicant ever contacting Canberra Health Services about empty cylinders, and only once about faulty cylinders.[60] Under cross-examination, the applicant conceded that they likely only contacted the respondent once in relation to receipt of empty cylinders, and once in relation to faulty cylinders.[61] The respondent’s contemporaneous file notes disclosed only one occasion – 1 September 2022 – on which a complaint was made of delivery of faulty cylinders, and the respondent acted expeditiously to have replacement cylinders and a new regulator sent out.[62]
Provision of additional cylinders above the standard number
[55] Transcript of hearing dated 18 July 2023, page 83, lines 5-44
[56] Transcript of hearing dated 19 July 2023, page 220, lines 9-34
[57] Transcript of hearing dated 19 July 2023, page 211, lines 5-46, page 220, line 9-34
[58] Transcript of hearing dated 19 July 2023, page 212, lines 18-41
[59] Transcript of hearing dated 19 July 2023, page 220, line 21-24
[60] Transcript of hearing dated 19 July 2023, page 211, line 21-page 212, line 41
[61] Transcript of hearing dated 18 July 2023, page 85, line 1-39. It could have been possible that the applicant raised the issue of empty or faulty cylinders with the BOC home therapy provider who made deliveries to the applicant during the relevant time. Mr Sebastian Tasrita, the BOC home therapy provider at the relevant time, gave evidence that he could not recall the applicant ever raising any issues about faulty cylinders and could recall perhaps one occasion where the applicant claimed that the cylinders delivered were empty: Transcript of hearing dated 19 July 2023, page 238, line 17-page 239, line 15
[62] Transcript of hearing dated 19 July 2023, page 251, lines 17-25. The respondent’s file notes did not disclose any record of a complaint being made about empty cylinders being delivered on the date of first delivery of oxygen cylinders (4 December 2020): Transcript of hearing dated 19 July 2023, page 251, line 12-15. The respondent gave evidence that no complaints, phone calls or emails were received from the applicant about the equipment delivered on that date: Transcript of hearing dated 19 July 2023, page 210, lines 3-11
When the applicant first requested more than the standard two oxygen cylinders per month, the respondent provided them, and provided them on subsequent occasions when the applicant requested them.[63]
Provision of a portable oxygen concentrator
[63] Transcript of hearing dated 18 July 2023, page 69, line 29-page 70, line 37; Transcript of hearing dated 19 July 2023, page 253, lines 35-40
When the applicant initially requested a portable oxygen concentrator, the respondent indicated that it was not a device provided under the DORS Scheme at that time, as it was not considered to be safe or useful for a large percentage of users of the scheme.[64] The respondent conducted a trial in their use which had “mixed success”.[65] After the trial, the respondent agreed that portable oxygen concentrators would continue to not be routinely supplied under the scheme, but would be considered following a request in writing from a referring clinician,[66] and supported with a medical certificate.[67]
[64] Transcript of hearing dated 18 July 2023, page 74, lines 19-35; Transcript of hearing dated 19 July 2023, page 169, line 20-page 171, line 13
[65] Transcript of hearing dated 19 July 2023, page 170, lines 20-22
[66] Transcript of hearing dated 19 July 2023, page 170, lines 24-27
[67] Transcript of hearing dated 19 July 2023, page 170, lines 38-41
The applicant consulted with their specialist and obtained a medical certificate in support of a portable oxygen concentrator (June 2022),[68] and a subsequent medical certificate indicating that it would be suitable in their specific case (February 2023).[69] The respondent then acted expeditiously to provide the applicant with a portable oxygen concentrator (April 2023).[70]
Issues with activating the gas cylinders
[68] Transcript of hearing dated 18 July 2023, page 72, lines 32-39; applicant’s submissions dated 14 February 2023 – ‘Medical certificate for the applicant electronically signed by Dr Rosianna Wee on 9 June 2022’
[69] Transcript of hearing dated 18 July 2023, page 74, line 19-page 75, line 8; Medical certificate for the applicant electronically signed by Dr Rosianna Wee on 10 February 2023
[70] Transcript of hearing dated 18 July 2023, page 75, lines 10-13. Evidence was provided at the hearing that the applicant was, at the time, the only client of the DORS Scheme using a portable oxygen concentrator: transcript of hearing dated 19 July 2023, page 176, lines 21-31
Evidence was given that the applicant did not disclose to the respondent their problems with activating the gas cylinders due to the weakness in their wrists, until the conciliation meeting with the HRC.[71] When the applicant disclosed this, the respondent acted swiftly to fashion bespoke tools to assist the respondent and their carer with this,[72] and to provide instruction in their use.[73]
[71] Witness statement of Donna Azzopardi dated 6 July 2023 at [15]; Transcript of hearing dated 19 July 2023, page 177, lines 1-12
[72] Transcript of hearing dated 19 July 2023, page 177, line 18-page 178, line 29
[73] Transcript of hearing dated 18 July 2023, page 89, lines 11-24. Instruction in their use was provided by Mr Sebastian Tasrita, at the relevant time a home therapy provider for BOC: Transcript of hearing dated 19 July 2023, page 238, lines 18-43
There was some dispute between the parties about whether the applicant informed the respondent that the tools did not assist.[74] Counsel for the respondent asserted that the applicant did not inform the respondent that the tools did not assist,[75] but the applicant resisted this.[76] Under cross-examination, the applicant confirmed that they did not take the step to inform the respondent that the tools did not assist.[77] In these circumstances, the Tribunal finds persuasive the submission made by the counsel for the respondent that it is open on the evidence to infer that, if a problem had been raised with the respondent about the use of the tools, it would have been actioned swiftly to a resolution.[78]
[74] Transcript of hearing dated 19 July 2023, page 178, lines 1-41
[75] Transcript of hearing dated 19 July 2023, page 252, lines 15-37
[76] Transcript of hearing dated 18 July 2023, page 70, line 39-page 71, line 26, page 89, line 11-page 90, line 4
[77] Transcript of hearing dated 18 July 2023, page 86, lines 12-24
[78] Transcript of hearing dated 19 July 2023, page 252, lines 29-37
At the hearing, it was demonstrated by the respondent that the applicant and their carer were, in fact, able to activate the gas cylinders at some times, and also that the tools were of some assistance.[79]
Consideration
[79] Transcript of hearing dated 18 July 2023, page 80, line 23-page 81, line 9, page 87, lines 1-46
The Tribunal accepts the applicant’s evidence that they felt disadvantaged by some or all of the issues they raised, and that they caused them emotional distress. However, taken individually and collectively, there are no grounds to suggest that the basis, ground or reason for the treatment was the applicant’s protected attribute. Indeed, in each case, where the applicant informed the respondent of the issues they had encountered (or, where relevant, obtained the necessary medical evidence) the Tribunal finds that the respondent acted expeditiously to assist the applicant and improve their situation. In determining whether a complainant has suffered a detriment or disadvantage because of a requirement or other hurdle, the Tribunal must make an objective determination, and not rely solely on the subjective views of either the complainant or the respondent. It does not appear on an objective examination of any of these instances in this matter that discrimination is reasonably explicable as the cause or motivating factor.
As has been previously noted by this Tribunal, in discrimination matters, one party asserts discrimination by the other. Accordingly, the proceedings are adversarial in nature, and the Tribunal has court-like powers to remedy a wrong done to a complainant, where discrimination is found to have occurred.[80] In discrimination matters, it is necessary for an applicant to “ensure that the opposing party can know, with sufficient clarity, the case which it is required to meet”.[81] The applicant in this case faced these challenges and did not make out a successful claim.
[80] Complainant 201931 v Australian Capital Territory (represented by Access Canberra) [2021] ACAT 9 at [71]
[81] Varasdi v State of Victoria [2018] FCA 1655 at [5], cited by Snaden J in Bickle v State of Victoria [2020] FCA 168 at [11], and in Complainant 201931 v Australian Capital Territory (represented by Access Canberra) [2021] ACAT 9 at [72]
In Complainant 201931 v Australian Capital Territory (represented by Access Canberra) (Complainant 201931),[82] the tribunal (constituted by Senior Member Hyman) explained a further reason why, in a discrimination matter in the ACT, the complainant must clearly articulate their case, relating to the structure of section 53CA of the HRC Act:
That section lays out the way in which the onus lies on the parties: the complainant, to succeed, must establish unfavourable treatment or disadvantage resulting from an imposed condition or requirement (depending on whether direct or indirect discrimination is asserted), and advance sufficient evidence that the treatment or disadvantage is caused by the protected attribute or attributes to persuade the Tribunal, in the absence of any other explanation. The respondent, to succeed, must advance evidence that rebuts any case the complainant has made by showing, where the complainant has established the rebuttable presumption that discrimination has occurred, that any unfavourable treatment or disadvantage had some other cause. The respondent’s obligation to rebut extends to, and not beyond, the case the complainant has made; the respondent has no obligation to rebut a case that was available to the complainant but not articulated.[83]
[82] [2021] ACAT 9
[83] Complainant 201931 at [74]
In Complainant 201931, the tribunal is:
[O]bliged by section 4AA of the Discrimination Act to construe that Act beneficially to the complainant to the extent that it is possible to do so consistently with the objects of the Act and with the Human Rights Act 2004; but that obligation does not extend to identifying a case that has not been made.[84]
[84] Complainant 201931 at [75]
With respect, Senior Member Hyman’s injunction also applies to this case.
This tribunal has recently noted that:
The Discrimination Act is a technical, prescriptive Act, that offers a form of protection to people on prescribed grounds, in prescribed circumstances, subject to certain defences. Because it is so technical, making out a case under the Act can be very challenging for many self-represented litigants, and indeed many lawyers.[85]
[85] McGhie v Aboriginal Legal Service (NSW/ACT) Limited [2023] ACAT 27 at [97]
As this tribunal has noted, complainants typically choose to have their complaint referred to the ACAT without any understanding of the statutory framework within which a complaint of discrimination must be decided, or of the minimum evidentiary requirements for a presumption to arise that direct or indirect discrimination has occurred.[86]
[86] Nowak (a pseudonym) v Walsh (a pseudonym) [2023] ACAT 3 at [5]-[6]
For a discrimination complaint to be substantiated, it must be proved to a proper standard, based on proper evidentiary material. The Tribunal must “feel an actual persuasion”[87] or a “comfortable satisfaction”.[88] With respect, the applicant and their carer both presented as forthright witnesses, who gave evidence to the best of their recollection and ability. However, without intending any disrespect, during the hearing the applicant was often unable to recall specific dates of when matters occurred and what actually occurred.[89] Their carer submitted that their memory had been affected by their own Ehlers-Danlos Syndrome and associated tiredness,[90] as well as by the two strokes they had suffered,[91] and the passage of time since the events they were seeking to recollect.[92] They indicated that they could remember emotion, but as counsel for the respondent submitted, recall of emotion is not sufficient to establish that allegations actually occurred.[93] Their evidence about what phone calls the applicant had made to the respondent about issues with the DORS Scheme was also limited by the fact that the carer often did not hear the applicant’s phone calls.[94] By contrast, the witnesses for the respondent all provided clearer and more specific evidence than the applicant and their witness, often supported by contemporaneous documentary evidence.[95] For these reasons, the Tribunal found the evidence of the respondent to be more persuasive.
[87] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 per Dixon J
[88] Briginshaw v Briginshaw (1938) 60 CLR 336 at 350 per Rich J
[89] Transcript of hearing dated 19 July 2023, page 251, lines 27-36
[90] Transcript of hearing dated 19 July 2023, page 132, lines 35-40
[91] Transcript of hearing dated 19 July 2023, page 144, lines 38-41
[92] Transcript of hearing dated 19 July 2023, page 147, lines 1-37, and page 158, lines 1-2
[93] Transcript of hearing dated 19 July 2023, page 251, lines 27-36
[94] Transcript of hearing dated 19 July 2023, page 158, lines18-47
[95] See, for example, transcript of hearing dated 19 July 2023, page 212, lines 10-16
For the reasons outlined above, the applicant’s case did not meet the standards of proof, and the applicant in this case has not made out a claim of discrimination under the Discrimination Act.
While a service may be less than ideal, this is not an adequate ground for finding it to be discriminatory. The application is dismissed.
………………………………
Senior Member L Beacroft
For and on behalf of the tribunal
| Date(s) of hearing: | 18 July 2023-19 July 2023 |
| Applicant: | In person |
| Counsel for the Respondent | Ms K Musgrove |
| Solicitors for the Respondent: | ACT Government Solicitor |
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